[Full judgment: RvLiu25May2015admissibilityofevidence.pdf]

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2014-044-001376
[2015] NZHC 1125

THE QUEEN
v
YUN QING LIU

[…]

This judgment was delivered by me on 25 May 2015 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Introduction

[1] The defendant, Yun Qing (“Jack”) Liu, is currently on trial on a charge of murdering his partner, Bin (“Cissy”) Chen. Ms Chen disappeared on Monday, 5 November 2012. Her body was not found until 16 months later.

[2] On the morning of her disappearance, Cissy Chen had a telephone conversation with a close friend, Yen (“Cindy”) Chin. Ms Chen told Cindy of her plans to make a will, leaving her assets to her brother and nephews. During the course of the conversation Ms Chen allegedly said to Cindy: “Cindy if one day I am dying [if I die] you please quickly call the police and Jack he’s the one who kill me”.

[3] The Crown believes that Mr Liu murdered Ms Chen within hours of that conversation, on the evening of Monday 5 November 2012. Mr Liu’s motive for killing Ms Chen is allegedly that he became aware on 5 November 2012 (or shortly before that) that she was intending to make a will, excluding him. The Crown case is that this precipitated an argument that turned violent, resulting in Ms Chen’s death.

[4] The Crown applied for a number of pre-trial orders regarding the admissibility of certain evidence. Moore J determined those admissibility issues prior to trial, with one exception. He determined that the admissibility of the “If I die” statement should be resolved by the trial Judge…

[…]

[57] With some reluctance, given the clear probative value of the evidence, I have concluded that the “reverberating clang” of the deceased’s accusatory words, made in such close proximity to her disappearance, would “drown out all weaker sounds” in this case. No matter how strong a jury direction is given, Ms Chen’s statement to Cindy begs to be used by the jury for an impermissible purpose, namely as evidence that Mr Liu did in fact kill Ms Chen. If the statement is admitted, there is a strong risk of the jury concluding that, whatever happened, Mr Liu must have done it. The “If I die” statement is therefore likely to assume a much greater significance than is warranted, and be used to support an impermissible chain of reasoning.

[58] Although there are a number of authorities to the effect that juries should be trusted to use evidence as directed, there will always be cases at the margins where the risk of unfair prejudice is so great that a court cannot be confident that the risk of misuse will be appropriately mitigated by a strong jury direction. In my view this is such a case.

Result

[59] The “If I die” comment made by Ms Chen to Cindy on 5 November 2012 is inadmissible at trial on the basis that its unfairly prejudicial effect outweighs its probative value.

[Full judgment: RvLiu25May2015admissibilityofevidence.pdf]

© Scoop Media